Capital Automobile Co. v. Rick

Deen, Presiding Judge. 1. The failure to specify in the letter returning the check that it would not be accepted in lieu of cash eliminates the right to object on the ground that the check was not legal tender. "It was immaterial that the actual cash was not tendered since the defendant by his course in failing to object to the tender on that ground and at the first opportunity waived his right to insist on payment in cash.” White v. Turbidy, 227 Ga. 825, 827 (5) (183 SE2d 363); Code § 20-1105. 2. "An agreement by a creditor to receive less than the amount of his debt cannot be pleaded as an accord and satisfaction, unless it be actually executed by the payment of the money, or the giving of additional security, or the substitution of another debtor, or some other new consideration.” Code § 20-1204. "Nothing short [832] of actual performance or payment, meaning performance or payment accepted, will suffice. Long v. Scanion, [105 Ga. 424, 31 SE 436]; Brunswick &c. R. Co. v. Clem, 80 Ga. 534 (7 SE 84); Troutman v. Lucas, 63 Ga. 466.” Campbell Coal Co. v. Pano, 51 Ga. App. 232, 234 (180 SE 139). 3. It is contended, however, that the situaton is different where it is the plaintiff who makes an offer, and the offer is accepted and executed by the debtor, so that nothing further remains to be done. We agree that such a situation sometimes arises, the effect of which might be denominated an executory compromise agreement. This sort of compromise most frequently appears in regard to settlement agreements relating to pending lawsuits, viz. Boswell v. Gillen, 131 Ga. 310 (62 SE 187); Kapiloff v. Askin Stores, Inc., 202 Ga. 292 (42 SE2d 724). In such cases the differences are clear-cut and the compromise of disputed rights is obvious. Whether there is in fact a difference between a compromise and an accord (see Code § 20-1205; 1 CJS 464, Accord & Satisfaction, § 1b (4)), so that one may be executory and the other not, is a difficult one. In Campbell Coal Co. v. Pano, 51 Ga. App. 232, 234, supra, it was suggested in the statement that if the plaintiff should agree with the defendant to accept a horse in satisfaction of his claim, but thereafter refused to accept it when tendered, there was no accord and satisfaction and "the remedy of the defendant, if he has one, is upon the contract.” In the present case we find no offer of a contract to compromise. The statement in the original letter was that the defendant owed the plaintiff a stated sum due to stated circumstances, and if he did not receive it he would sue. The sum was indeed remitted, but the plaintiff in the meantime discovered that the defendant owed him not only the sum stated but more besides. Not having made any offer to forgive all debts, he still held the option of accepting the lesser sum. The check when mailed had a release of all claims on the back of it, and not wishing to give up the remainder of his cause of action he returned it immediately to the sender. Under these circumstances it does not appear as a matter of law that the plaintiff is precluded from demanding the entire amount which he claims is due him. The trial court did not err in denying the motion for [833] summary judgment. Judgment affirmed. Bell, C. J., Clark, Stolz and Webb, JJ., concur. Pannell, P. J., Quillian, Evans and Marshall, JJ., dissent.